ALFREDO HEREDIA DIAZ, PETITIONER,
v.
STATE OF FLORIDA, RESPONDENT
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The court held that a belated appeal from the denial of a postconviction motion is not available when the notice of appeal was not timely filed due to counsel's ineffectiveness in the collateral proceeding, following Lambrix v. State.
Petitioner sought a belated appeal after appointed counsel failed to file a notice of appeal from an adverse decision on a motion for postconviction r…
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PER CURIAM.
In this petition for a belated appeal filed pursuant to Florida Rule of Appellate Procedure 9.140(j), Alfredo Heredia Diaz complains that appointed counsel failed to file a notice of appeal, upon Diaz’s timely request, from an adverse decision of the trial court on a Florida Rule of Criminal Procedure 3.850 motion for postconviction relief. Until recently Florida courts have granted relief in such circumstances upon a proper evidentiary basis. See e.g., Jones v. State, 642 So. 2d 121 (Fla. 5th DCA 1994); McLeod v. State, 586 So. 2d 1351 (Fla. 5th DCA 1991). Our supreme court, however, recently stated that such relief was inappropriate in the postcon-vietion setting. See Lambrix v. State, 698 So. 2d 247, 248 (Fla.1996), cert. denied, — U.S. —, 118 S.Ct. 1064, 140 L.Ed.2d 125 (1998). This decision has been criticized by the majority of a divided panel of the Fifth District. See Steele v. Kehoe, 724 So. 2d 1192, 23 Fla. L. Weekly D771 (Fla. 5th DCA 1998).
Lambrix apparently mandates that counsel’s purported failure to file a notice of appeal upon timely request by Diaz from the denial of a postconviction motion affords Diaz no relief in the form of a belated appeal. Accordingly, we deny the petition. The court in Lambrix foreclosed inquiry into the effectiveness of appellate counsel employed in a collateral proceeding for failing to brief a specific issue, whereas Diaz here hopes to resuscitate an appeal which he asserts was lost due to the negligence of trial counsel. Accordingly, we certify to the supreme court the following question as one of great public importance:
DOES THE HOLDING OF LAMBRIX V. STATE, 698 S0.2D 247 (Fla. 1996), FORECLOSE THE PROVISION OF A BELATED APPEAL FROM THE DENIAL OF A POSTCONVICTION MOTION WHEN THE NOTICE OF APPEAL WAS NOT TIMELY FILED DUE TO THE INEFFECTIVENESS OF COUNSEL IN THE COLLATERAL PROCEEDING?
Petition denied.
CAMPBELL, A.C.J., and FULMER and CASANUEVA, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
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Lynwood Williams v. State, 777 So. 2d 947 (Fla. 2000)…re of postconvietion counsel to raise an issue on appeal from the denial of a rule 3.850 motion: "[Cjlaims of ineffective assistance of postconvietion counsel do not present a valid basis for relief.” Lambrix, 698 So. 2d at 248. . In Diaz v. State, 724 So. 2d 595 (Fla. 2d DCA 1998), the Second District denied a petition for a belated appeal based on a claim that the petitioner's appointed counsel failed to file a notice of appeal, upon his timely request, from a trial court's denial of a 3.850 motion for pos…
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Hunter v. State, 779 So. 2d 492 (Fla. 2d DCA 2000)…lack of jurisdiction due to counsel’s untimely filing of the notice of appeal. See Demaria v. State, 778 So. 2d 302 (Fla. 2d DCA 2000). However, we certify to the Supreme Court of Florida the same question that this court certified in Diaz v. State, 724 So. 2d 595, 596 (Fla. 2d DCA 1998), with the following modifications: DOES THE HOLDING IN LAMBRIX V STATE, 698 SO. 2D 247 (FLA.1996), WHEN CONSIDERED IN LIGHT OF THE SUPREME COURT OF FLORIDA’S PRONOUNCEMENT IN STEELE V. KEHOE, 747 SO. 2D 931 (FLA.1999), FORE…
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Demaria v. State, 778 So. 2d 302 (Fla. 2d DCA 2000)…el failed to do so.” Id. at 81. We find Trowell to be distinguishable from this case. Trowell involved a direct appeal from a guilty plea. It did not involve an appeal from the denial of a postconvietion motion, as this case does. In Diaz v. State, 724 So. 2d 595, 596 (Fla. 2d DCA 1998), this court held that the Supreme Court of Florida’s decision in Lambrix v. State, 698 So. 2d 247 (Fla.1996), mandated that a defendant be afforded no relief in the form of a belated appeal based on counsel’s failure to file…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Cary Michael Lambrix v. State, 698 So. 2d 247 (Fla. 1996)
- Dixon v. Singletary, 724 So. 2d 1192 (Fla. 3d DCA 1998)
- Jones v. State, 642 So. 2d 121 (Fla. 5th DCA 1994)
- McLEOD v. State, 586 So. 2d 1351 (Fla. 5th DCA 1991)